Authors:Simon Mullings
Last updated:2023-09-18
Open letter to the Secretary of State for Levelling Up, Housing and Communities, Rt Hon Michael Gove MP
Marc Bloomfield
Description: HLPA
Dear Secretary of State,
Thank you for your letter of 28 December 2022, also sent to, among others, Shelter, The Law Society, The Bar Council, the Solicitors Regulation Authority, the Bar Standards Board, Citizens Advice and LawWorks (as referred to in ‘Housing secretary shames three more failing social landlords’, Department for Levelling Up, Housing and Communities news story, 28 December 2022).
In your letter, you expressly recognise the important work of HLPA members and others in representing tenants, borrowers and homeless people, and that was also your kind message to our conference in November 2022. That recognition is deeply welcome at a time when our sector is beset by dangerous false narratives about legal aid lawyers (from, it has to be said, some of your colleagues and ex-colleagues in government) as well as policies and policy proposals that put legally-aided housing law work at grave risk of elimination.
Our views on the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and the evisceration of social welfare law, legal aid rates stagnation, dire missteps in legal aid administration including, but not limited to, the Client and Cost Management System, the culture of refusal at the Legal Aid Agency (LAA), court closures and the court reform programme, and the fixed recoverable costs (FRC) regime are well known. We will need to refer to them again later.
But your letter joins issue with another threat to access to justice for our clients, namely moves to exclude the majority of people of modest or lesser means from the courts. A variety of government and non-government institutions have put forward and continue to develop proposals that seek to divert disputants whose claims are deemed to be of lower value away from a determination by the courts and rule of law.
In your letter, you write, ‘I would like to emphasise the importance of directing social housing tenants with concerns about their housing to the Social Housing Ombudsman.’ This needs addressing in some detail.
The starting point is to set out our recognition of the progress that has been made in the Housing Ombudsman Service (HOS). We have been impressed with the HOS’s focus on poor performance of landlords in relation to housing conditions, in particular damp and mould, and the recognition within the service that a dangerous and sometimes racist culture of denial and victim-blaming has grown up among landlords.
HLPA was privileged to have Richard Blakeway speak and answer questions at our 2021 conference. He was impressive on these issues, including recognising the pernicious effects that institutional racism has on this issue and generally in housing provision.
So we recognise and salute the fact that the HOS has been cognisant of the deep and dangerous complacency within the housing provider sector as to housing conditions, damp and mould well before the inquest into Awaab Ishak’s tragic and avoidable death concluded.
Nevertheless, Awaab died while the HOS had all the powers and broadly all the resources it has now. We are not aware of significant extra resources being deployed. The HOS’s efforts in this arena are focused around bringing about a culture shift in the provider sector rather than redress for tenants. Respectfully, it is naive to think that the HOS has the capacity to investigate and seek a remedy for every case of dangerous damp and mould that you are calling to be referred.
Poor housing conditions are dangerous and many times need an urgent remedy. But the HOS’s website says this: ‘If you are unable to resolve your complaint through your landlord’s complaints procedure you can refer it to the ombudsman.’ A social housing sector that has been found to have been asleep at the wheel for decades must mark its own homework before any independent scrutiny from the HOS can be considered. These timescales are too long for urgent cases. And as the Nearly Legal blog has pointed out, the HOS is taking around 12 months to deal with complaints, there is no provision for expert evidence to help determine the works that are required, and there is no reasoned, predictable amount of awards – Giles Peaker of Nearly Legal estimates that the HOS awards around 25 per cent of what the courts, informed by case law, consider is reasonable (Giles Peaker, ‘The whirligig of time’, Nearly Legal, 1 January 2023).
Can a legal resolution to the urgent matter by way of an injunction be sought while the complaint is pursued about the wider issues? The answer, as far as the HOS is concerned, is no and its FAQs make this startlingly clear. The HOS cannot ‘make [a] landlord take immediate action regarding … outstanding repairs’. Instead, tenants are referred to a fact sheet that is out of date in respect of fitness for habitation legislation, despite the HOS having been alerted on more than one occasion to this fact.
Likewise, the FAQs say that the HOS will not take a complaint if there is any legal action underway, but it also says it cannot compel a landlord to carry out repairs. Therefore, housing lawyers are being asked to advise people who need legal redress, many times urgently, to forego that legal redress and bring a complaint, first through the housing provider’s complaints procedure and then to the HOS. Such advice would be negligent and a solicitor or adviser should expect to face censure if they did such a thing in the way that I have set out.
If the purpose of what you suggest was for the HOS to gather data about housing conditions, which would be a very fine purpose, then might I suggest there are other bodies, including your own department, that are better placed to achieve that.
The fact is that many of our members do have to give advice all the time about complaints and the HOS because there is chronic under-capacity in the tenant-facing housing law sector. My own experience and, anecdotally, that of colleagues is that a significant number of people seeking advice have contacted the HOS and have either been disappointed with an outcome and/or timescales, and/or just been told that the HOS cannot help for a variety of reasons, some of which are frankly baffling – a recent client at housing possession duty court told me the HOS would not consider her complaint about disrepair because the landlord had brought possession proceedings against her – she had not at that point raised any counterclaim.
It is now necessary to write about those matters alluded to above that do not directly fall within your department’s remit, but that do have a critical bearing on its priorities. Because the rented housing sector is broken after decades of policy by sticking plaster and the see-saw of deregulation and rearguard regulation, justice in the sense of legal justice between tenants and landlords has become over-determinative of landlord and tenant relations. And so the justice system is inextricably entwined with that for which you have responsibility, whether any of us like it or not.
Letting accommodation that is unfit for human habitation is against the law. The law needs to intervene in cases where it occurs. However, since 2013, a number of factors have conspired (and continue to conspire) to make it substantially more difficult for tenants to get legal redress in disrepair and housing conditions cases. Effectively, the legal aid service has been defunded generally and housing law advice deserts continue to grow. Claims for compensation against bad landlords were taken out of scope of legal aid by LASPO. This was an act of vandalism to justice that produced no savings for the public purse but constituted a windfall for recalcitrant landlords. A culture of refusal at the LAA has seriously depressed capacity in the legal aid sector by depredating the morale of legal aid lawyers and also proscribing legal aid to deserving tenants.
FRC will further deprecate the sector and the senior judiciary’s focus appears to be driving the vast majority of people without substantial means out of the court/legal system altogether, if the obsession with ill-considered mandatory mediation is anything to go by. Please permit me this passing rhetorical question on this point: if (alternative) dispute resolution is so effective, why are high-value claims, which surely have much more headroom for compromise, not mandated for mediation or similar? The Court of Appeal is unlikely to answer this question when it considers mandatory alternative dispute resolution for low-value cases later this year.
It bears repeating that the Homes (Fitness for Human Habitation) Act 2018 is a law that should have prevented the Awaab Ishak tragedy. Why didn’t it? Since the Act came into force in 2019, we have still not seen any reports of trial outcomes. This magazine has carried articles suggesting why that is (see, for example, my article, ‘Homes and (dis)contents: getting full value out of the Homes (Fitness for Human Habitation) Act’ at February 2020 Legal Action 6). At the same time, the HOS has not kept up with that vital addition to the law on housing conditions. Clearly, the HOS has a valuable role to play in changing the culture of social landlords, which is an important part of the piece. But unless tenants can get full legal redress with timely remedies for urgent, dangerous problems and proper damages awards calculated in a predictable and reasoned way, using the legislation that is on the statute books right now, then they are left legally disenfranchised and we will continue to see housing conditions cause misery, injury and, I fear, the worst of all consequences.